)) HER MAJESTY THE QUEEN Respondent – v. –, 2017 ONSC 1984

CITATION : R. v. Chen, 2017 ONSC 1984 COURT FILE NO.: 14-13292 DATE: 2017/03/30 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: )) HER MAJESTY THE QUEEN Respondent – and – Ye Chen Appellant ))))))))))))) M. Karimjee, for the Crown D. Anber HEARD: March 22, 2017 REASONS FOR DECISION C.T. Hackland J. [ 1 ] The appellant appeals his conviction in the Ontario Court of Justice for having care and control of a motor vehicle while impaired. [ 2 ] The facts are not in dispute. Shortly after 11:45 pm, two witnesses were returning to their vehicle in a parking garage adjacent to the Rideau Centre in downtown Ottawa.

In this garage, they came across a vehicle, a black SUV, with its engine running and lights on. The accused was sitting in the driver’s seat, slumped over the console and passed out. There was a large amount of vomit on the ground adjacent to the driver’s door. A witness opened the vehicle door, leaned in and turned the vehicle off. She noticed a strong odour of alcohol and vomit inside the driver’s side door. She attempted to awaken the accused but he was unresponsive. [ 3 ] The police were called.

The report of a forensic scientist established that the accused’s blood/alcohol content (“BAC”) between 11:40 pm and 12:10 am would have been in the range of 90 to 150 milligrams of alcohol in 100 millilitres of blood. [ 4 ] The accused testified in his own defence. He said he had parked his vehicle at that location at 5:22 pm and from there, had walked to an important business meeting at a nearby tavern – a 10 minute walk away. The trial judge summarized the accused’s evidence as follows: Mr.

Chen testified that the meeting went very well, and that it soon evolved into a celebration involving the consumption of copious amounts of alcohol. He testified the he got so intoxicated that by night’s end he was literally incapable of navigating the ten minute walk back to his car and thus took a cab; however, not a cab to his home, not a cab to a hotel, but a cab to his vehicle. Mr. Chen estimated that he arrived back at his vehicle at approximately 11:30 p.m. Notwithstanding the celebrations that had already occurred, it was going to be necessary for Mr.

Chen to return to the Brig first thing the next morning and to iron out the remaining details on the $85,000,000 financing deal. Mr. Chen claims to have therefore formulated a plan to get into his vehicle for no purpose other than to sleep until the next morning. He indicated that he reclined his seat and went to sleep intentionally. He testified that the vehicle was only turned on to activate the heat, and, further, that he often slept in his vehicle. Mr. Chen testified that he had no intention of putting the vehicle into motion until the next morning.

Further, he indicated that in order to put his vehicle into motion he would have to release the parking brake, depress the brake and put the car into gear. He did agree in cross-examination that his memory of the evening at the Brig was pretty clouded due to alcohol consumption. Further, he agreed that while it may have been his plan to celebrate in the aftermath of his meeting, it was at no point part of his plan to get so drunk that he could barely walk. [ 5 ] The trial judge first noted that because the accused was located in the driver’s seat of a running vehicle, pursuant to s. 258(1) (

a) of the Criminal Code , R.S.C., 1985, c. C-46, the accused is presumed to be in care and control unless he establishes that he “… did not occupy that seat or position for the purpose of setting the vehicle …in motion”. He stated correctly that “In order to displace the presumption of care or control, the accused needs to establish the lack of this purpose on a balance of probabilities”.

[6] The trial judge concluded on the evidence that the accused failed to rebut the presumption that he was in care of control ofhis vehicle. His Honour stated: While I may not be in a position to completely reject Mr. Chen’s evidence, I am not satisfied that his version of this so called planconstitutes a sufficiently reliable body of evidence so as to amount to proof on balance that he had no intention to drive. I am notsatisfied that Mr.

Chen, in his advanced state of inebriation, with its consequent adverse effects on his judgment, would not have put thevehicle in motion within minutes of awakening, whenever that might have been, if left to his own devices. [7] The appellant challenges this finding. He argues that because he was in fact found sleeping in his vehicle, not having tried toput it in motion, it should have been inferred that his intention was not to drive but rather to sleep.

It is argued that too much emphasiswas put on the appellant’s plan – which the appellant said was to sleep in his vehicle so he could return to the tavern the next morning. [8] In my view, the appellant’s argument amounts to saying that there was insufficient evidence to sustain the trial judge’sfinding of fact that the accused intended to drive.

It is admitted that the trial judge properly applied the reverse onus provision, ie. thepresumption contained in s. 258(1)© of the Criminal Code which requires the appellant to establish that he “did not occupy the driver’sseat for the purpose of setting the vehicle in motion”. For well-articulated reasons, the trial judge did not accept the appellant’s evidencethat he went to his vehicle in order to sleep there so he could return to an early morning meeting at a nearby location. There was everyreason to believe the appellant had originally planned to drive home after his evening at the tavern.

Had sleeping over been his goal hewould have had an overnight bag or checked into one of the nearby hotels. The trial judge was entitled to reject the “I planned to sleep inmy car” story and it was not unreasonable to have done so. I can see no palpable and overriding error on this factual determination. [9] The trial judge also concluded “on the totality of the evidence before me, I also feel obliged to say that even had I found thepresumption to have been rebutted by Mr.

Chen’s evidence, I would still have convicted him.” This is also a factual conclusion arrived atafter considering several excerpts from the decision of Fish J. in R. v. Boudreault, 2012 SCC 56 , [2012] S.C.J.

No 56 at para.45: …anyone found inebriated behind the wheel with the present ability to drive will – and should – almost invariably be convicted…Aconviction will be neither appropriate nor inevitable absent a realistic risk of danger in the particular circumstances of the case. [10] And at para. 48: …’Realistic risk’ [of danger] is a low threshold and, in the absence of evidence to the contrary, will normally be the only reasonableinference where the Crown establishes impairment and a present ability to set the vehicle in motion.

Again, to avoid conviction, the accused will in practice face a tactical necessity of adducing credible and reliable evidence tending toprove that no realistic risk of danger existed in the particular circumstances of the case. [11] Justice Fish referred to the realistic danger concept at para. 42 of Boudreault: In the absence of a contemporaneous intention to drive, a realistic risk of danger may arise in at least three ways.

First, an inebriatedperson who initially does not intend to drive may later, while still impaired, change his or her mind and proceed to do so; second, aninebriated person while behind the wheel may unintentionally set the vehicle in motion; and third, through negligence, bad judgment orotherwise, a stationary or inoperable vehicle may endanger persons or property. [12] Importantly, the trial judge arrived at this “factual conclusion”: When I reflect on these excerpts and consider the evidence in this case, I have no hesitation in making the factual conclusion (seeparagraph 60, Boudreault) that there existed – even presuming a lack of intention to drive – a realistic risk of danger.

It is a lowthreshold for the Crown to meet and the accused has not provided anywhere near credible and reliable enough evidence to negative thisfactual inference that I feel compelled to draw. (Underlining added) [13] The appellant says that the underlined passage quoted in the previous paragraph contains an improper statement of the burdenof proof. I do not accept this submission.

In my view, the trial judge’s statement mirrors that of Fish J. in Boudreault that “…again toavoid conviction, the accused will in practice face a tactical necessity of adducing credible and reliable evidence tending to prove that norealistic risk of danger existed in the particular circumstances of the case.” [14] In my view, the trial judge’s conclusions that there existed a realistic risk of danger from the accused waking up and decidingto drive or inadvertently setting the vehicle in motion, are manifestly reasonable.

The trial judge drew inferences of risk from thecircumstances proven and the appellant failed in respect of his tactical necessity of proving that no risk of danger existed. Theappellant's immediate ability to put his vehicle in motion and the risk of his deciding to do so is sufficient evidence to sustain theconviction, see R. v. Johnston, 2016 ONCA 834 , [2016] O.J. No. 5738 (OCA) [15] The appeal is dismissed and the conviction is affirmed. Mr. Justice C.T. Hackland

Released: March 30, 2017 CITATION : R. v. Chen, 2017 ONSC 1984 COURT FILE NO.: 14-13292 DATE: 2017/03/30 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN Respondent – and – Ye Chen Appellant REASONS FOR JUDGMENT Hackland J. Released: March 30, 2017